SJ Weir Ltd v Bijok

Case [2011] SASCFC 165

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

SJ WEIR LTD v BIJOK & ANOR

[2011] SASCFC 165

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

23 December 2011

TORTS - NEGLIGENCE - GENERAL MATTERS

TORTS - NUISANCE - WHAT CONSTITUTES - PRIVATE NUISANCE

Appeal against award of damages to plaintiffs in negligence and nuisance.

Appellant undertook building work on land adjoining respondents' property - excavation work caused subsidence of adjoining land and damage to respondents' carport, driveway and house - retaining wall constructed by appellant found to be inadequate.

Whether the trial Judge was entitled to conclude from the evidence of Mr Vreugdenburg that the appellant proceeded to erect a retaining structure in contravention of the engineer's advice - whether the circumstances attracted the principle of res ipsa loquitur - whether liability in nuisance arose.

Held:  Appeal dismissed.

Gray and Sulan JJ:  Appellant breached duty of care by failing to provide adequate retention and by acting contrary to engineering advice - circumstances attracted the principle of res ipsa loquitur - breach was a material cause of the subsiding of the soil causing damage to property - negligence proven - further finding of liability in private nuisance open to trial Judge.

Blue J: As to nuisance, the trial Judge correctly found the nuisance caused the loss - as to negligence, the trial Judge correctly found that the appellant departed from the engineer's design - the doctrine of res ipsa loquitur applied and the appellant's negligence caused the loss - and s 72 of the Development Act did not apply becuase the appellant failed to prove negligence by the engineer or causation of loss.

Development Act 1993 (SA) s 72, referred to.
Bijok & Anor v S J Weir Pty Ltd [2011] SADC 20; Donoghue v Stevenson [1932] AC 562; Schellenberg v Tunnel Holdings (2000) 200 CLR 121; Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 85 ALJR 666; Watts v Rake (1960) 108 CLR 158, applied.
Jones v Dunkel (1959) 101 CLR 298; Piening v Wanless (1968) 117 CLR 498; Anchor Products Ltd v Hedges (1966) 115 CLR 493; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Bonomi v Backhouse (1859) EB & E 646; Backhouse v Bonomi (1861) 9 HL Cas 503; Dalton v Henry Angus & Co (1881) 6 App Cas 740; Brown v Robins (1859) 4 H & N 186 [157 ER 809]; Stroyan v Knowles (1861) 6 H & N 454 [158 ER 186]; Pantalone v Alaouie (1989) 18 NSWLR 119; Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127; Hargrave v Goldman (1963) 110 CLR 40; Walker v Adelaide City Corporation (2004) 88 SASR 225; Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738; Morgan v Lake Macquarie City Council [1993] NSWCA 184 (Unreported, NSW Court of Appeal, 2 September 1993); Savini…

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AGLC
SJ Weir Ltd v Bijok [2011] SASCFC 165
Case
[2011] SASCFC 165
Decision Date

CaseChat Overview and Summary

SJ Weir Ltd appealed to the Full Court of the Supreme Court of South Australia against a judgment of a trial judge who found the company liable in nuisance and negligence for damages totalling $141,710. The dispute arose from construction works undertaken by SJ Weir on land adjacent to the property owned by the Bijoks, which comprised sand dunes and included a carport, driveway, and retaining wall on its eastern side.

The legal issues before the Full Court concerned whether SJ Weir had committed private nuisance or been negligent in its conduct during the construction. Specifically, the court had to consider the adequacy of the design and implementation of temporary retaining walls and underpinning works intended to support the Bijoks' structures during the excavation for a basement carport on the adjoining development site.

The court's reasoning focused on the evidence presented regarding the design and communication of the retaining wall strategy. It was noted that while Meinhardt had prepared designs for a temporary retaining wall adjacent to the Bijoks' driveway, the extension of this design to the area near the carport was based on an assumption by SJ Weir. Furthermore, the court considered expert evidence that indicated a consensus at a site meeting that difficulties were anticipated with the proposed underpinning, and an alternative involving propping steel columns for the retaining wall was discussed. The court ultimately rejected the fourth ground of appeal, finding that the evidence supported the trial judge's findings of liability.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The trial Judge found SJ Weir liable in both nuisance and negligence for damages in the sum $141,710. SJ Weir appeals to this Court from that judgment.Background facts The Bijoks own a block of land at Glenelg. It comprises windblown sand dunes. Structures erected on it include a carport on the eastern side of the house, a driveway running along the eastern boundary to the carport, and a retaining wall along the eastern boundary. In 2002, developers acquired the land to the east of the Bijok block to construct an apartment building. They engaged Meinhardt PT Design Pty Ltd (“Meinhardt”) as engineers and SJ Weir as the builder. The developers intended to construct a basement carport, with an access ramp leading down to the carport along part of their western boundary. They intended to construct mass concrete underpins beneath the Bijoks’ carport and to construct a temporary retaining wall adjacent to the Bijoks’ driveway against which they would ultimately construct a permanent masonry retaining wall. In June 2003, SJ Weir commenced excavation. At that point, Meinhardt had prepared drawings for the concrete underpins to the Bijok carport. SJ Weir had proposed to Meinhardt an alternative method of installing the underpins (by machine-bored excavations), but this specific method and the question of underpinning generally was in a state of uncertainty. On 11 June, the local council issued an enforcement notice requiring all work to cease. SJ Weir requested that Meinhardt prepare a design for the temporary retaining wall along the western boundary to adjoin the Bijoks’ driveway. On 12-13 June, Meinhardt prepared drawings and computations involving the installation of 11 steel I-beam columns (“steel columns”) spaced 1150mm apart (centre to centre) in the ground along the western boundary of the development site adjoining the Bijok driveway, with metal sheeting installed immediately behind the steel columns to retain the soil (ie sand) within the Bijoks’ boundary. On 13 June, Meinhardt sent the design drawings and computations to SJ Weir. On 13 June, SJ Weir sent a letter to the Bijoks enclosing the Meinhardt design drawings and computations, referring to the original intention to underpin their footing on their eastern boundary and proposing an alternative approach of piecemeal shoring and retention per the Meinhardt drawing. It was common ground at trial and on appeal that, as at 13 June, the only design for a temporary retaining wall prepared by Meinhardt was for the area adjacent to the driveway and not the area adjacent to the carport. However, the letter proceeded on the basis of SJ Weir simply extending that design to the area adjacent to the carport as well. On 23 June, a site meeting took place. The topic of retention on the western boundary of the development site was discussed. The minutes record “Meinhardt to reconsider the southern and western temporary retaining structure, allowing to temporary prop the columns” (sic). The principal Meinhardt engineer, Mr Vreugdenburg, gave evidence that:1.there was a consensus reached by the time of the meeting that there would be difficulties in achieving the proposed underpinning to the Bijoks’ carport;2.an alternative was suggested at the meeting, namely to extend the steel column/metal decking temporary retaining wall mechanism to the boundary adjacent to the carport as well;3.Mr Vreugdenburg said at the meeting that, if this were done, it would be necessary to “prop the columns”, ie to attach diagonal steel props to the top of the steel columns running down to the excavated ground level well within the boundary of the development site.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I reject the fourth ground of appeal.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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